I'd like to thank the minister and Mr. Pentney for coming to the committee.

I'd also like to recognize, once again, the good work that Mr. Garrison has done on this matter. It's important to acknowledge that.

Minister, I want to thank you for introducing this bill and for working towards fulfilling your mandate on this issue, as set out by the Prime Minister in his ministerial mandate letter.

Can you give us a sense of the other issues faced by members of the transgender and LGBTQ communities in the justice system and what other measures you would consider in the future to deal with those issues?

That's a really broad question, but a really important question. I'm very much looking forward to ensuring that we, and I, take a very comprehensive, very broad interpretation of the Prime Minister's mandate to me, in terms of looking at and doing an overall review of the criminal justice system, including sentencing reform, and in doing so, recognizing that we need to identify measurables or signals that we are making progress. One of those signals, and this is further identified in my mandate letter from the Prime Minister, is to look at the overrepresentation of indigenous persons or other marginalized persons who have been discriminated against for many reasons that deal with higher level or upstream societal realities, whether that be poverty, marginalization, lack of housing, etc. It's also to look to having a review of the criminal justice system that addresses those social concerns so we do not have a justice system that is a catch-all for our social ills, so to speak.

In terms of individuals who suffer discrimination based on their gender identity or their gender expression, or individuals who are in the justice system because they have a mental illness or addiction, or that they are indigenous, we need to be very mindful that the criminal justice system disproportionately impacts these individuals. We have to and are committed to doing better to address these broader societal issues, in terms of looking at the criminal justice system broadly, and ensuring that when individuals find themselves in the justice system, we create and provide off-ramps for them, and also have preventive measures.

I guess in terms of discrimination generally, and the recognition that we want to continue to live in a fair and just society, I consider it the most essential part of my mandate as the Minister of Justice.

Having come from a population that has been discriminated against historically and to a certain degree is still discriminated against, I think the most important thing I can do in my role as Minister of Justice is to recognize and acknowledge where discrimination exists, and do my part to build consensus among parliamentarians and raise awareness among Canadians that it is not acceptable. Our society would be the better for it when we do as much as we can to eliminate that discrimination wherever it exists.

I was encouraged by something you said earlier. You said part of your motivation was to combat hate and discrimination wherever they are found. Specifically now we're talking about transgender people.

The old section 13 of the Canadian Human Rights Act was removed by the last Parliament. This section permitted rights complaints to the federal Human Rights Commission for the communication of hate messages by telephone or Internet.

The Canadian Bar Association and other human rights groups have argued that section 13 was an important tool in helping to combat hate speech.

In your efforts to combat hate and discrimination wherever you find it, including hate and discrimination and hate speech in messages against transgender individuals, would you, in your view, consider looking at section 13 again? It was an important tool to combat these types of messages.

I appreciate the question. It fits quite nicely into my previous comments in terms of doing everything we can to eliminate discrimination, to eliminate hate speech that is projected upon any individual in the identifiable group. It's part of the review that I'm undertaking. That review is looking at actions that were taken by previous governments. Certainly, that is something we can consider looking at in terms of section 13, and how we can make that more broadly applicable across the work that we're seeking to do.

As members would recall, one of the rationales for deleting section 13 was that the hate provisions in the Criminal Code were the more appropriate way of dealing with extreme speech. It underlines the importance of clarifying in the Criminal Code exactly what is covered...filling the gap in the promotion of genocide and clarifying the definition of identifiable group in the hate promotion speeches. In its interim period, adding gender identity and gender expression to the list of identifiable grounds in the Criminal Code would therefore be even more important in this absence because, as it stands now, without section 13, and without those provisions in the Criminal Code, hate speech, promotion or advocacy of hatred or violence towards these groups is not in and of itself a criminal offence.

I think the minister has indicated a willingness and a commitment to look at section 13, but with Bill C-16, Parliament would have an opportunity more immediately to provide at least some protections in the criminal law.

I want first of all to say that I support the underlying intent of the bill. I stand in opposition to all forms of discrimination against transgendered Canadians. That's why I voted for this bill at second reading.

One of the concerns or issues that I did raise when I spoke to the bill in the House of Commons was on the need for the bill. I appreciate, Madam Minister, your efforts to address that issue this morning.

I noted when I was going through some of the cases that have been decided in terms of interpreting the term “sex” under the Canadian Human Rights Act, such as the Kavanagh and Correctional Services decision, the Montreuil and National Bank decision, the Montreuil and Canadian Forces decision, and the Nixon decision at the British Columbia Court of Appeal, that in all of those decisions the courts and the Canadian Human Rights Tribunal did interpret “sex” to include persons who are transgendered.

Are you aware of any cases where the term “sex” was interpreted narrowly against transgendered persons?

There's only one other question I have. Bill C-16 is really a successor to Bill C-279, which had been put forward by Mr. Garrison in the last Parliament. At one point in Bill C-279, “expression” was removed from the bill, and it was limited to gender identity. Could you explain the rationale for including “gender identity” and “expression” in terms of the language in the current bill?

I can explain why it's included here. I certainly would look to my deputy to explain why it was taken out before.

I very much appreciate the legislation that was put forward, in its full package, to recognize gender identity but also gender expression as a grounds of discrimination. Certainly, we heard from many groups in the trans community that we needed to be comprehensive, because discrimination does not just befall one's gender identity but certainly manifests itself in terms of an individual's gender expression.

We wanted to ensure, engaging with very knowledgeable members of Parliament as well as members of the community and stakeholders, that this was something that was deeply felt and needed to be included, and it needed to be inclusive to ensure that for individuals, whether in terms of their gender identity or how they express their gender, it's included both in the Canadian Human Rights Act and in the Criminal Code.

Well, the Canadian Human Rights Act has covered this in terms of sex, but what we wanted to do is make it very clear and explicit so individuals will know how the law is and what the law is, so that they do not have to advocate or become legally enabled to determine or find themselves within another definition—that it is clear. In terms of the Criminal Code provisions that are essentially interpreted quite narrowly, we wanted to make it clear that gender identity and gender expression are specifically included.

I want to state that I'm against discrimination as well, but there are many minority groups with a much larger representation than the trans group people who don't have that explicitly in legislation today. Why would you offer one group explicitly what you're offering people on the basis of sexual orientation and expression when there are many other minority groups that perhaps could also benefit? I think the reason that previous governments haven't done it is that the broadness in the existing law is of benefit to all groups, including all minorities.

You've obviously consulted studies, or you've examined data that would lead you to the conclusion you have, and I'd like you to cite some of those, please.

Well, first of all, I feel compelled to respond to some of the comments you made. If there are other groups that aren't recognized in the prohibited grounds, or an identifiable group, I would very much like to know what those groups are.

I would further say the reason there are protections in the Canadian Human Rights Act isn't dependent upon, in my view, the number of individuals who experience discrimination, whether that be large or lower. Human rights are human rights, and we need to ensure, whether it's a small group of people or a large group of people, that we provide the necessary protection for those individuals. That's why we've introduced Bill C-16. That's why years of advocacy in this regard have brought us to this place. The prohibited grounds of discrimination in the Canadian Human Rights Act are quite broad and are clearly articulated so as not to exclude anybody who is finding discrimination.

I would put the question back to you. You say there are many others who aren't included explicitly. I would very much like to know. Perhaps we can have a conversation about that off-line. I would be interested in your thoughts in that regard.

I also want to make one clarification: “sexual orientation” is already covered under the Human Rights Act and the Criminal Code. It's “gender identity and “gender expression” that we're now trying to cover, just so everybody has the lexicon correct.

Thank you, Minister, for appearing before us once again this week, and thank you to Mr. Garrison for his many long years of activism on this file and keeping it on the front burner.

Most of my questions have been addressed either in your remarks, Minister, or in the very many excellent questions. I have one quick question, and then I'll share my time with Ms. Khalid. Can you speak about the experiences of jurisdictions that explicitly identify gender identity and/or expression as a prohibited ground of discrimination, either within Canada or abroad? Have they reported a noticeable increase in accessibility for those individuals or a decrease in criminal offences against this?

In terms of Canada, the vast majority of the provinces and territories have legislated in similar ways. The first jurisdiction to legislate was the Northwest Territories in 2002. Across the country, in terms of gender identity and expression now being explicitly included, we have Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, and Quebec. Gender identity is explicitly included in Manitoba, the Northwest Territories, and Saskatchewan.

In terms of the data and the impact of legislating in this regard, I don't have those numbers off the top of my head, but would be very much willing to provide them and consult with my colleagues in the provinces and territories to see if they have collected data in this way.

No, not specifically. I think one would find that there have been numbers of complaints filed at various human rights commissions, but as with other types of discrimination, such as sexual harassment and other things, when they're explicitly listed, they do not magically disappear from the society. Commissions use a combination of education, providing practical guidance to employers and others, and vindicating rights through individual cases to try to change the social norm. Over time, one hopes, you move the yardsticks that way.

Even going back to the Northwest Territories, I don't believe you'd find jurisdictions that have adopted this saying that it has removed the problem. They would all say that they now have a firm legislative tool as a basis for all of those other activities, and a way, through individual cases, of making clear what the state believes, and also, that there is a practical way for individuals experiencing discrimination to vindicate their rights. That's been the genius of human rights law—and human rights commissions—throughout its life in Canada.